Chair Carol Ronning Kapsner called the business meeting of the Judicial Conference to order at 9:01
a.m. on November 19, 2012. Sally Holewa, State Court Administrator, called the roll:
Justices of Supreme Court
Gerald W. VandeWalle Dale V. Sandstrom Mary Muehlen Maring Carol Ronning Kapsner Daniel J. Crothers
Judges of District Court
Donovan Foughty Laurie A. Fontaine M. Richard Geiger John C. McClintock, Jr. Michael G. Sturdevant Debbie Gordon Kleven Joel D. Medd John T. Paulson John E. Greenwood Thomas E. Merrick Daniel D. Narum Jay A. Schmitz Frank L. Racek John C. Irby Steven L. Marquart Steven E. McCullough Lisa K. Fair McEvers Wade L. Webb Gail Hagerty Sonna M. Anderson Cynthia M. Feland David E. Reich Bruce Romanick Thomas J. Schneider Zane Anderson H. Patrick Weir William W. McLees Douglas L. Mattson David W. Nelson Joshua B. Rustad
Judges of Municipal Court
DeNae C.H. Kautmann Robert A. Keogh
Ronald E. Goodman Benny Graff William F. Hodny Everett Nels Olson Allan L. Schmalenberger Kirk Smith
Wayne K. Stenehjem
Clerk of the Supreme Court
Members of the Bar
Michael F. Daley Sherry Mills Moore
A quorum was declared and the business meeting proceeded.
Chair Kapsner welcomed judge-elect Dann Greenwood and judge-elect Brad Cruff to the
Chair Kapsner announced that the membership of the Committee on Legislation has recently
changed. Justice Dale Sandstrom was named chair of the Committee and Judge John Irby and
Judge Doug Mattson were named to the committee. She then called on Justice Sandstrom to lead
the discussion on proposed legislation.
Justice Sandstrom said that the duties of the Committee on Legislation are to solicit, receive and
evaluate suggestions relating to the administration of justice and review proposed legislation that
may affect the operation of the judicial branch. He said there is a need to establish a method for
review of proposed legislation. The committee recommends that the Judicial Conference adopt
the following method:
1. The Committee on Legislation will receive and evaluate suggestions from members and
review proposed legislation; 2. If the committee determines that the suggestion or proposed legislation relates to the
administration of justice or affects the operation of the judicial branch, the committee will
use electronic means to notify the members of the Judicial Conference and solicit
comments on the suggestion or proposed legislation; 3. The Committee on Legislation may take a stance either supporting or opposing the proposed legislation; 4. The Committee on Legislation may draft proposed legislation and seek legislative
sponsors to carry bills on behalf of the Judicial Conference.
Justice Sandstrom moved that the Judicial Conference adopt the proposed
recommendation as explained. The motion was seconded by Judge Medd. In response to a
question regarding whether the use of electronic means of communication was allowable under
the open records laws, Justice Sandstrom indicated that he believed it was because the Judicial
Conference had delegated the authority to act to a subcommittee and because the subcommittee
will not be inviting discussion but simply notifying members of the opportunity to comment.
Attorney General Wayne Stenehjem said that under the open records laws entities can conduct
business via email however they need to follow the requirements for posting notice. He said his
office will advise the conference on what needs to be done to meet those requirements. The
Justice Sandstrom then outlined the legislative proposals that were before the conference for
1. A bill to align judicial terms of offices with the election cycles; 2. A bill to eliminate specific references to kinds of cases that can be delegated to judicial
referees; 3. A bill to clarify that per page transcript rates are set by supreme court rule or policy; 4. A bill to amend various statutes to remove district court judge involvement in certain
non-judicial duties; 5. A bill to create a new section of ch. 27-02 relating to a judicial emergency; 6. A bill to eliminate the requirement that the court return bail to third parties and to allow
bail to be applied to any child support owed and to past-due fines and fees anywhere in
the state; 7. A bill to repeal individual court fees and replace them with a single fee; 8. A bill to allow a judge to summarily dismiss a petition for post-conviction relief; and 9. A suggestion that the Judicial Conference recommend a bill that would establish a statute
of limitations for bringing post-conviction relief petitions consistent with the federal
The floor was then opened for discussion. Attorney General Wayne Stenehjem stated that the
current law on bail was changed to allow a third party who posts bail to get their money back and
questioned if the intent of the proposal was to eliminate this provision. Judge Mattson responded
that under the current statute, bail can still be applied to fines even if it was posted by a third
party. Judge Racek clarified that the bail bill arose from a discussion in the Odyssey User Group
on how to streamline the workload. He said that having to track information on bail remitters is
labor intensive because law enforcement does not always gather the necessary information and
because it requires the clerk to issue refund checks. He said the bill, as proposed, would clarify
that the court can apply bail money posted in a particular county to any fines and fees owed
anywhere in the state. He said the bill would add child support obligations to the list of financial
obligations for which bail could be applied. In response to a question, he said that a third party
could ask for a hearing in which they could request the court order the bail be returned to them.
Judge Racek said the fees bill would eliminate seven different court fees and replace them with a
single fee that would then be divided by percentage. He said the bill was necessary because
calculations are a problem for courts using Odyssey Session Works. The software does not
handle addition and subtraction well so the clerks have to manually calculate costs. He said he
reviewed five years of revenue data to come up with the percentages and the suggested fee
schedule. He said the bill is intended to be revenue neutral. He said one significant difference is
that in those counties where the state’s attorney is responsible for collecting and disbursing
restitution, the restitution collection fee for non-sufficient fund checks would be added as actual
restitution instead of maintained as a separate fee and that state’s attorneys would need to issue a
check to their office for the amount of the restitution collection fee. In all other counties, the
restitution collection fee would be added to court fees and paid into the general fund.
Chief Justice VandeWalle commented that he wants to make sure that if the court decides to
carry a bill forward, the person who proposed the legislation is going to be there to testify on it.
In response to a question, staff attorney Jim Ganje stated that the Alternatives to Incarceration
Committee was supposed to do an interim study on court fees but the study did not occur.
In response to a question, Judge Racek said the proposed bill on fees is flexible enough to
accommodate the legislature changing the percentages or enacting new fees.
In response to a question, Judge Racek said the proposed bill on fees would have no impact on
fees charged by local community service programs.
Discussion then turned to the proposals regarding post-conviction relief. Justice Sandstrom
indicated that in addition to the bill draft submitted by Judge Christofferson and the suggestion
submitted by Judge Hovey, there has been recent North Dakota caselaw on post-conviction relief
case that should be considered.
In response to an informal poll, there was unanimous agreement of the membership that the issue
of post-conviction relief should be referred to the Committee on Legislation for study.
Surrogate Judge Olson made a motion to have the Committee on Legislation look at the
various suggestions on post-conviction relief and prepare a bill draft, if the state’s
attorneys association is not already working on this issue. The motion was seconded by
Judge Fair McEvers. The motion carried.
Judge Irby made a motion that the Judicial Conference support the bills on bail and fees
that came from the Administrative Council. Judge McLees seconded the motion. The
Chair Kapsner then called on Justice Crothers to report on the activities of the Court Services
Administration Committee in regard to self-represented litigants. Justice Crothers reported that
in response to testimony from clerks of court that they spend up to 10% of their time assisting
self-represented litigants and from trial court judges that self-represented litigants often appear
for hearings unprepared to proceed, the committee recommended that the court consider
establishing a court facilitator position. As envisioned, the court facilitator would be connected
with the state law library and would be responsible for assisting litigants by explaining court
procedures and answering questions about documents. The recommendation was adopted by the
Supreme Court and the position has been included in the court’s 2013-2015 budget request.
Chair Kapsner then called on Chief Justice VandeWalle to report on the court’s plan for new
judgeships. Chief Justice VandeWalle stated that the supreme court is proposing three new
judgeships, two for the Northwest Judicial District and one for the East Central Judicial District.
The court will also be asking for three new support staff positions to serve as court
reporters/recorder for the new judges.
Chair Kapsner next called on Judge Paulson to discuss his concerns with the 24/7 sobriety
program. Judge Paulson said he is concerned about the procedure for violations of the program.
Currently, a warrant is issued based on the affidavit of the tester. The defendant is then located
and jailed without an opportunity to argue for bail or request counsel. He asked where in the
current procedure defendants are allowed to present their side of the story. Judge Hagerty said
that she views the 24/7 program as a condition of bond. If she receives a report of violation, she
will revoke the bond immediately but will set a hearing if defense requests it. She contrasted this
procedure to a probation violation where if a violation is alleged, no action is taken until the
state’s attorney petitions for revocation. Attorney General Wayne Stenehjem offered to have the
person from his office that is in charge of the program contact Judge Paulson to work out a
procedure. Judge Sonna Anderson said that in addition to Judge Paulson’s concerns, she also has
an issue with defendants being held in jail because they do not have enough cash on hand to pre-pay their testing fee.
Michael Daley moved and Justice Crothers seconded that the minutes of the June 14, 2012
meeting be approved. The motion carried and the minutes were approved.
There being no further business, the meeting was ended at 9:58 a.m. Respectfully submitted,
Sally Holewa State Court Administrator Executive Secretary to the Judicial Conference